ARBERY AND MCDUFFIE: TOO MANY SIMILARITIES?
Based only on what I read online, I wonder if Georgia investigators and prosecutors are rushing the Arbery case the same way that Janet Reno botched a similar investigation in the McDuffie case 1980.
I’m hoping I’m wrong, but … Both cases started off with the cops/prosecutors doing nothing. Then came a public uproar, and in both cases the state rushed to make up for lost time and respond quickly to outraged demonstrators and the victim’s family.
In Reno’s case, that meant a hurried immunity for the cop that the lead detective thought started the beating that led to the death of motorcyclist Arthur McDuffie. Meanwhile, Reno’s office indicted a cop who didn’t even arrive at the scene until the beating was over because his patrol car got a flat tire. There were a ton of other prosecution mistakes – chronicled in my book Verdict on Trial — but let’s set those aside and look at what’s happening in Georgia in the case of Ahmaud Arbery, the jogger killed by a shotgun-wielding vigilante.
Months by without anything happening until a video emerged of Arbery’s death. A father-son were quickly charged, but then prosecutor went farther – charging the video guy, William “Roddie” Bryan, with felony murder. The maximum penalty for that crime in Georgia is death.
Bryan was following the jogger. Didn’t touch him. Didn’t shoot at him. He simply used his phone to record the confrontation with father-son that led to the shotgun blasts and Arbery staggering several steps, then falling dead.
The Georgia detectives’ theory is that Bryan was keeping Arbery from fleeing – Bryan is also charged with “criminal intent to commit false imprisonment,” a felony. If a death occurs while committing a felony, the defendant can be charged with felony murder, even though he didn’t pull the trigger.
Arbery’s family applauded Bryan’s arrest. So did many who had been demonstrating in a demand for “justice.”
BUT … a jury is ultimately going to decide this case. The legal concept of felony murder may be sound, but how’s that going to play to a jury? A death sentence (or life imprisonment) for making a video?
In the 1980 McDuffie case, angry demonstrators complained that manslaughter charges were not enough, and Reno responded by charging one cop with second-degree murder, which in Florida means “evincing a depraved mind regardless of human life,” with a maximum sentence of life. After the trial, one of the jurors complained that the second-degree charge was “indefensible” and an “effrontery” to the jurors’ intelligence.
In the McDuffie case, the cop with the flat tire had his case thrown out by the judge half-way through the trial. But the lesson of his case was not lost on the jurors, who believed that if the state had bungled in charging one cop, they could have surely bungled with others.
Certainly, when the Arbery case comes to trial, lawyers for Travis McMichael and his father Greg McMichael will argue that the state was so bending to mob pressure that it even charged the video guy with murder. Mob pressure was a theme in the McDuffie case, as it is in many cases involving the deaths of unarmed black men.
Of course, the McMichaels will plead self-defense. They just wanted to stop Arbery and wait for the police, who were on their way. Arbery grabbed the shot gun, and Travis fought back to protect himself. Self-defense was the theme in the McDuffie case, too: Officer Alex Marrero said he felt the motorcyclist grabbing his gun, and he hit him as hard as he could with his nightstick. The autopsy report showed McDuffie hadn’t been fighting – no defense wounds on his hands – and must have been on the ground when his skull was cracked with such force, but the coroner was the last witness the state called, and the jurors shrugged off his findings.
There’s a lot of similarities here, of course, between Arbery and the sad case of Trayvon Martin, who was accosted by vigilante George Zimmerman while coming back from a Florida’s convenience store where he’d bought a snack. Zimmerman’s claim was self-defense. A jury believed him. As one defense lawyer told me: “The only person who could have disputed Zimmerman was dead.”
Let me be clear here: Trayvon Martin shouldn’t have died for a trip to the convenience store. Arthur McDuffie shouldn’t have died for speeding on a motorcycle. Ahmaud Arbery shouldn’t have died for jogging down a street.
But we are a nation of law. The defendants’ fate will be decided in a courtroom based on the rule of law. The irony is that vigilantes – Zimmerman and the McMichaels – will get the rule of law they denied Trayvon Martin and Ahmaud Arbery.
Progressives can call for “justice” in the awful, oft-repeated deaths of unarmed black men. Right-wingers can chant “lock her up” to Donald Trump’s approval at political rallies without bothering with an indictment of Hillary Clinton, much less a trial. But in America, cases are decided in courtroom, not in crowd demonstrations.
In Georgia, it’s apparently legal to be carrying a shotgun on the street. Was it OK for the McMichaels to be waiting for Arbery? Will the video guy say McMichael acted in self-defense? What basis did the Georgia Bureau of Investigation have to charge the video guy? These are questions that may only be answered in a courtroom, and the ultimate deciders will be jurors.
The Arbery case has a long way to go. Let us hope that Georgia’s investigators and prosecutors are making sensible decisions.
Here are comments about Verdict on Trial from Abe Laeser, who spent 37 years as a Dade County prosecutor, some of them as Janet Reno’s chief assistant. He’s quoted throughout the book,
By Abe Laeser
Let me reiterate how enjoyable the book was to read…. Some of my thoughts are personal, some are case related, some are about being a trial lawyer, and some defy categorization; so the ideas will be random.
“Somewhere around the 70% mark…. you wrote about Dade not prosecuting other officers for homicide. Not at all accurate. You must have known that as you referred to the Luis Alvarez shooting of Neville Johnson in the Overtown arcade in 1982. There were quite a few others, both before and after McDuffie. I prosecuted Alvarez and a 1978 shooting of a black man by Thomas Mitchell of Opa Locka P.D. The office prosecuted the shooting by [officer Ernesto] Urtiaga in mid-’80’s and an Overtown motorcyclist shooting prosecuted by John Hogan and Don Horn.”
Dorschner’s note: The book says that at one point the Dade State Attorney’s office went a quarter century without prosecuting a case involving an on-duty police officer shooting, but in retrospect the sentence is a bit ambiguous. The quarter century started in 1989, after a case involving Officer William Lozano, charged with killing black motorcyclist Clement Lloyd. . The 2016 North Miami shooting recounted in the book was “the first time since 1989 that an officer in the county had been indicted for an on-duty shooting.”
Mitchell was convicted but freed on appeal by an opinion that said my case was “wholly devoid” of evidence of guilt. Carhart and Gerstein read it and immediately promoted me to the Major Crimes unit. Hogan and Horn got a conviction, as well [this was the Lozano case]. It was reversed on appeal, but allowed for a retrial — which was moved to Orlando and resulted in an acquittal.
Alvarez is the case of which I am most proud. Both of the case prosecutors quit the office within 90 days of trial and Reno begged me to take it over. ALL crime witnesses were teens. Each had spoken to media at length — and without a common theme. No two versions resembled each other. The folks from PULSE were regular voices of encouragement, so I wanted them present every day of the trial. My opponent was Roy Black. I told Janet that my sole promise was to be engaged in mortal combat in order to quell the fires after the certain Not Guilty verdict. I lost — but the city won. The black leaders thanked me for the effort. Guards stayed at my home during trial. It was my last trial loss ever.
” JURY SELECTION
First impressions count. Bad impressions cannot be undone. Even I have learned to smile and joke with jurors. I need the rapport / eye contact of EVERY juror before I can make decisions. I want to be close to them, near the bar. I want to dazzle them with my capacity to remember details from their juror forms — feigning true care.
That cannot be done without questioning each person in depth. I also believe that I need [if possible] to win each day of trial before I can win any trial. I want jurors to talk to each other. Nobody from Gables Estates sees police like anyone from Carol City. My trial order is set to achieve that result. If the Day 1 witness is immoral, and the Day 2 witness is reprehensible, and Day 3 begins with another offensive witness — I have to pack my bags.
I believe in the miracles of my Torah. I do not believe that G-d would intervene just because I was being foolish. I want jurors to debate and I can decide if they can ever be on the same jury — or do I concede an 11 to 1 vote before I start? If I feed them ‘crap’ from the witness stand, can I expect them to thank the chef?
In Alvarez I put on some investigators, medical stuff, tried to hide my two or three eye witnesses, then figure out how to finish as well as possible. If the kids had been my first witnesses I fear the city would see May of 1980 again.
McDuffie Trial Would Have Been Better with One Defendant
The jurors were right – they often are. The prosecution could prove Veverka and Hanlon used violence to subdue a person who pissed them off. I still cannot fathom giving them any deal — let alone immunity. Give a bunch of them an unsavory deal [probation + loss of licensure] and then only charge Marrero with Second Degree Murder- assuming you believe he committed the fatal acts. One defendant to focus upon. Unsavory witnesses, but that all talk about the 2-3 fatal blows. You can actually win — as jurors want someone to be punished — and he is the sole ‘someone!
Reno Went to Court Once.
We had some preliminary proceeding set for hearing on the Francisco Fuster child rape case from Country Walk. She wanted to sit in and carry the weight of the office. Sitting close to the lectern, she yanked my sleeve every time she had an idea. Yes, I had thought that. No, that is a weaker argument… After I won on all issues, we went to her office. I asked if she had planned to keep coming to court. When she thought she would, I asked if I could give the case to her new “Special Chief,” John Hogan. She agreed. He got back at me when they cast the movie version of the case, called Unspeakable Acts. The Abe Laeser character was short and nearly bald — sort of like Yoss.
Rioters Had Been Watching TV, not Reading Newspapers.
I know you are from the print media, but even if I subscribed to the Herald and News, I still got a huge portion of my information from the TV. Ask Marshall McLuhan. The TV gave everyone 60 seconds of: Cop blames defendants / Doctor says: falling from 4 story building / ad infinitum. There was NO contrary coverage. Even I had to dig for details — and few bothered. It contributed as much or more to the astonishment that the community felt from the quick acquittals. After all, the 11 o’clock news tp’d me it was a slam dunk.
After McDuffie, No Saturday Verdicts in Cop Cases
Yes, if I had a jury out on a high profile case by Friday evening, I always said the name McDuffie to convince the jurist to sequester them for the weekend and let them begin again on a Monday morning. The police learned to set up on alpha/Bravo 12 hour shifts, cancel vacation days, and set up regional command posts. The 1980 riots had some later value.
Don’t Indict if You Can’t Prove at Trial
Grand jury practice could be handled by interns. As the old joke goes, I could indict a ham sandwich. No defense, trying to prove ONLY probable cause… For years I screened every single Grand Jury case. I had many arguments with an overeager prosecutor / cop over cases that could never be proven beyond a Reasonable doubt at trial. I refused to be swayed by an argument that they had plenty of probable cause. No reason to do that to any citizen when the case could not be proven at trial. Guess I leaned from that ‘wholly devoid of evidence’ of guilt rebuke in Mitchell. You know they are pissed at the appellate level when instead of calling you a prosecutor, they mention you by name.
The Era of Mock Juries
Life is different now. No ‘huge’ case goes to trial without mock juries, jury selection experts, or even shadow juries to give instant reactions. No, I do not lament for the good old days. However, I did just finish giving my law school course final Exam via Zoom.
Critiquing the Book
Not positive how I feel about the Johnny Jones tale as part of this book. Seems slightly out of sync.
I liked [James] Lees, [a veteran trial attorney who comments throughout the book] but much of his work seemed to be axiomatic for any skilled courtroom practitioner. That concept just seems to reinforce the idea that tactical trial thinking was not at work for the prosecution in Tampa.
Rundle Not Keeping Top Homicide Prosecutors
Thinking back, the [McDuffie cops] defense team was the top of the SAO food chain until Reno. Most were sure that Carhart would get the slot– but he was “ONLY” a trial giant. She had clout. McWilliams, O’Donnell, and Kogen were former top level prosecutors. In 1980, there were only one or two people senior to me — and I had started in mid-1973. Bob Kaye and Jim Woodard were left, and were very skilled. Both were gone within the year . There was no one until my ‘generation’ matured and grew into the empty slots.
As an aside, I fear the same is true today. Rundle has not worked to keep the senior homicide people. A high-profile murder today would be prosecuted by young lawyers or those without the tactical chops to carry the load. In five years, that will [I hope] not be true in Dade.
Thanks, again for a book that brought back the heady days of my youth so faithfully.